#29410-a-SPM
2022 S.D. 12
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CARL LEROY NELSON, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
…
THE HONORABLE CAMELA THEELER
Judge
…
JASON R. RAVNSBORG
Attorney General
JOHN STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
MARK KADI of
Minnehaha County Office
of the Public Advocate
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
…
CONSIDERED ON BRIEFS
AUGUST 23, 2021
OPINION FILED 02/16/22
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MYREN, Justice
[¶1.] A jury convicted Carl Nelson of driving under the influence (DUI),
abuse of or cruelty to a minor, reckless driving, and other offenses. He appeals his
convictions, arguing that the circuit court erroneously denied his motions for
judgment of acquittal on all counts, erroneously denied his motion for a mistrial,
and erroneously instructed the jury on his right to refuse a blood draw. We affirm.
Facts and Procedural History
[¶2.] At 8:05 p.m. on October 28, 2019, a woman called 911. She reported
that Carl Nelson, the father of her six-week-old child, was driving a black Acura
under the influence of alcohol with the infant in the backseat. The woman claimed
Nelson was en route to his father’s house and requested that officers meet Nelson at
the house and remove the infant from his care. She informed dispatch that she
witnessed Nelson drinking earlier that evening, that he had been in his vehicle
earlier, and that she saw him swerving while driving.
[¶3.] Officer Jason Meyer responded to the dispatch call. Within ten to
fifteen seconds of arriving at a possible intercept point, he observed the vehicle
approaching. He testified that “the vehicle was traveling at an extremely high rate
of speed.” Based on his experience and training, he estimated the vehicle was
traveling at 70-miles-per-hour in a 35-mile-per-hour speed zone. Officer Meyer
radioed that he saw the vehicle speeding in the direction of the house. Due to the
angle of his patrol car and the suspect vehicle’s speed, he could not initiate a traffic
stop.
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[¶4.] Officer Paul Frerichs and Officer Carlos Puente had also responded to
the dispatch call and were waiting, in their respective patrol cars, for Nelson to
arrive at the house. While waiting, Officer Frerichs heard Officer Meyer’s message
over the radio and witnessed Nelson’s vehicle pull into the driveway within
approximately thirty seconds of the message. Officer Frerichs testified that the
distance from Officer Meyer’s location to the house was about ten to fifteen blocks
and that he did not observe Nelson commit any traffic violations as he approached
the house and stopped. After parking in the driveway, Nelson turned off the engine
and exited the car. He quickly moved toward the house despite Officer Frerichs’s
requests to stop. Officer Frerichs grabbed Nelson’s arm before he could enter the
house, to which Nelson protested that he had not done anything.
[¶5.] The officers pulled Nelson toward their patrol cars and handcuffed
him. Nelson continued to exclaim that he did nothing wrong. He informed the
officers that there was a baby in his vehicle and asked the officers to get his father
from the house. Officer Meyer asked Nelson if he had been drinking. Nelson
responded that he had drunk a little bit earlier that evening. The officers requested
that he perform field-sobriety tests. Nelson refused, saying he wanted his father to
take the infant before the officers did anything with him. Nelson also refused a
preliminary breath test. During the interaction, Nelson repeatedly denied driving
70-miles-per-hour in the 35-mile-per-hour speed zone.
[¶6.] After Nelson requested an attorney, the officers placed him under
arrest. During the search incident to arrest, an officer found the Acura’s keys in
Nelson’s pocket. Officer Meyer then provided Nelson with the DUI advisement and
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requested a sample of Nelson’s blood. Nelson refused to provide a sample. The
officers testified that they smelled an odor of alcohol on Nelson, and Officer Frerichs
testified that Nelson had bloodshot eyes and slurred speech.
[¶7.] While two officers placed Nelson in the patrol car, a third officer
removed the infant from the vehicle and brought the infant inside the house. The
temperature outside was 32 degrees. After the infant was removed, Officer Meyer
searched Nelson’s car and observed a glass pipe containing burnt residue smelling
like marijuana in the center console; a case containing another glass pipe and a bag
containing marijuana on the front seat floorboard; and a can of malt liquor outside
the vehicle.
[¶8.] After the officers placed Nelson in the patrol car, he asked an officer if
his baby was inside the house with his father. When the officer confirmed that the
infant was inside, Nelson responded that all he cared about was his baby’s safety.
During Nelson’s transport to the police station, he repeatedly asked if the officers
had proof that he was speeding and intoxicated.
[¶9.] A magistrate judge authorized a search warrant for the withdrawal of
Nelson’s blood. The blood draw occurred at 9:44 p.m., approximately one hour and
ten minutes after Officer Meyer witnessed Nelson driving. The blood sample
revealed a .114 percent blood-alcohol content (BAC) and was positive for Carboxy
THC. 1
1. According to the State’s expert, the body breaks down THC in stages to
remove the substance. Carboxy THC is the second stage.
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[¶10.] Based on the incident, the State charged Nelson by complaint. He was
subsequently indicted by a grand jury for: (1) abuse of or cruelty to a minor (SDCL
26-10-1); (2) DUI with a BAC of .08 percent or higher (SDCL 32-23-1(1)); (3) DUI for
driving under the influence of an alcoholic beverage, marijuana, or any controlled
drug or substance (SDCL 32-23-1(2)); (4) possession of a revoked or canceled driver’s
license (SDCL 32-12-67); (5) possession of marijuana (SDCL 22-42-6); (6) reckless
driving (SDCL 32-24-1); (7) driving while license is revoked (SDCL 32-12-65(1)); and
(8) use or possession of drug paraphernalia (SDCL 22-42A-3). 2 Nelson pleaded not
guilty to all counts. The State later filed a part II habitual offender information,
alleging Nelson had committed three prior felony offenses: third-degree burglary in
2003, possession of a controlled substance in 2006, and possession of a controlled
substance in 2011.
[¶11.] Nelson’s jury trial began on June 22, 2020. At trial, the State played
the 911 call that was the impetus for the investigation and presented three arrest
videos. The State also called as witnesses the officers present at the scene and
various forensic scientists. To support the State’s contention that Nelson was
speeding, Officer Meyer testified that he had been a radar-lidar instructor since
2016 3 and that vehicle-speed estimation was a part of his training. He said that
before officers stop a vehicle, they first observe it, estimate a speed, and then
2. An additional count—failure to maintain financial responsibility (SDCL 32-
35-113 to -114)—was dismissed prior to trial.
3. Officer Meyer explained that radar and lidar are different pieces of
equipment for judging speed. “[A] radar gun [ ] uses doppler radar principles
to judge the speed of a vehicle. A lidar uses a laser beam to determine [the]
speed of a vehicle.”
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activate their equipment to confirm the speed. He claimed that he could not use his
radar or lidar to obtain Nelson’s speed because Nelson arrived before he had set up
his equipment and his patrol car was at an angle that was not conducive for the
equipment. Officer Meyer also testified that the infant was in the vehicle’s backseat
in an improperly secured car seat. He claimed the car seat was improperly secured
based on the manufacturer’s instructions and the seat belt being “strung over the
top of both the car seat and the base.” During cross-examination, he acknowledged
that he had not read the car seat manufacturer’s directions. On redirect
examination, he clarified that the car seats that he had experience with were
secured by running the seat belt through the car seat’s base.
[¶12.] The State called Cody Geffre, a forensic chemist at the State Health
Lab, who the court qualified as an expert in the analysis of blood-alcohol content.
Geffre testified that his testing of Nelson’s blood sample revealed a BAC of .114
percent. He explained that the body absorbs alcohol over time and that individuals’
absorption rates could be affected by when they had their last drink and the type of
alcohol they consumed. He noted that in a social-drinking situation, a person’s BAC
reaches its peak about thirty minutes after their last drink. He described that in
situations where a person is drinking large amounts of alcohol in a short period of
time, a bolus-drinking situation, the person’s BAC peaks around forty-five minutes
to an hour after the person’s last drink. He testified that alcohol is eliminated from
the body for a person of Nelson’s stature at a rate of .015 percent per hour on
average. Based upon Nelson’s stature, Geffre testified that it would take
“approximately five standard drinks” to reach a .114 percent BAC at the time of his
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blood draw. The State then asked if Geffre could arrive at Nelson’s BAC when he
was driving based upon the known information. Geffre responded, “Yes.” He
testified that Nelson’s BAC would have been approximately .132 percent while
driving, assuming Nelson was in the post-absorptive phase. To assume Nelson was
in this phase would give Nelson the benefit of the doubt. However, Geffre testified
that even with the benefit of this assumption, if Nelson drank an entire can of malt
liquor right before the officers arrested him, his body would have absorbed the
alcohol by the time of the blood draw.
[¶13.] During cross-examination, Geffre admitted that he did not know if
Nelson was involved in a social-drinking or a bolus-drinking situation, and, as a
result, he could not tell exactly how quickly Nelson’s body absorbed the alcohol. He
also testified that he did not know what type of alcohol, how much alcohol, or when
Nelson drank the alcohol the evening of the arrest. Geffre stated that he had to
assume Nelson was in the post-absorptive phase to arrive at Nelson’s BAC being
.132 percent while driving. He noted that assumptions could “probably” be made to
put Nelson below a .08 percent BAC while driving.
[¶14.] On redirect, the State began by stating, “[Geffre], we don’t have to
make assumptions about when he had been drinking. Evidence was presented
earlier that he was observed drinking about an hour before the 911 call had come
in, and that call came in at 8:05, and so around seven p.m.?” Nelson’s counsel
objected to the question, claiming the State was stating facts not in evidence. The
court held a bench conference off the record. Afterward, the State revised its
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question and, without objection, asked a series of hypothetical questions involving
Nelson drinking at 7 p.m.
[¶15.] After the State rested, Nelson moved for a mistrial, arguing that the
State’s comment during Geffre’s testimony coupled with the State’s hypotheticals
involving Nelson drinking at 7 p.m. created an incurable prejudice. Nelson asserted
a plethora of arguments, including that: (1) the State did not offer any evidence that
Nelson’s last drink occurred at 7 p.m.; (2) the State’s hypotheticals must involve
questions regarding the facts in evidence; (3) the State’s questions amounted to
vouching for the credibility of the evidence the State’s attorney was offering; and (4)
he was precluded from confronting a witness in violation of his right to due process.
He further argued a curative instruction was insufficient to cure the prejudice. In
response, the State asserted that the hypotheticals were based on evidence from the
911 call, in which the caller reported having seen Nelson drinking earlier that
evening. The State argued that Nelson’s vouching argument is inapplicable because
it did not claim that the caller was credible. The State acknowledged that offering
the timeline of events was a mistake based on evidence it thought had come in. The
State asserted that during the off-the-record bench conference, the circuit court
asked Nelson’s counsel if the State could pose the question as a hypothetical and
indicated that Nelson’s counsel shrugged and requested a curative instruction,
which the court granted. The State further argued that there was ample evidence
in the record, without the disputed testimony, to establish Nelson’s intoxication.
The circuit court recounted its recollection of the proceeding and then denied
Nelson’s request for a mistrial. It determined that the facts in evidence tended to
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prove Nelson’s intoxication, and the hypothetical questions did not warrant a
mistrial.
[¶16.] Nelson then moved for judgment of acquittal on count 1 (abuse of or
cruelty to a minor); count 2 (DUI with a BAC of .08 percent or higher); count 3 (DUI
for driving under the influence of an alcoholic beverage, marijuana, or any
controlled drug or substance); and count 4 (reckless driving). 4 Nelson argued that
for DUI count 2, the State failed to establish that his BAC was .08 percent or higher
while driving because Geffre’s testimony was based upon assumptions. For DUI
count 3, Nelson argued that the State failed to present evidence that Nelson was
driving erratically because the speeding evidence was disputed, and the odor of
alcohol was insufficient to establish intoxication. For the reckless driving count 4,
Nelson disputed Officer Meyer’s testimony that Nelson was driving 70-miles-per-
hour and claimed the State failed to prove that he was driving recklessly. Nelson
argued that there was no evidence of abuse or cruelty toward the minor without the
DUI or reckless driving offenses. The court denied the motions, determining the
jury could reasonably find Nelson guilty of each count.
[¶17.] The court and the parties then began finalizing the jury instructions.
Regarding Nelson’s refusal to consent to the blood draw, Nelson proposed criminal
pattern jury instruction 3-10-6. 5 Instead, the court accepted the State’s proposed
4. Nelson also unsuccessfully moved for judgment of acquittal on count 8
(possession of drug paraphernalia).
5. Criminal pattern jury instruction 3-10-6 provides:
(continued . . .)
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instruction based on criminal pattern jury instruction 3-10-7. 6 The court stated
that the selected instruction was based on SDCL 32-23-10.1 and State v. Stanley,
2017 S.D. 32,
896 N.W.2d 669. The parties agreed on a curative instruction to
address the State’s questions to Geffre, which read: “The jury must disregard the
prosecutor’s statements regarding the time the Defendant allegedly began drinking
and any conclusions derived from such evidence. Statements of counsel are not
evidence.” 7
[¶18.] After the jury instructions were settled, Nelson rested without
presenting evidence. During the State’s closing argument, it stated that Geffre
________________________
(. . . continued)
Evidence has been submitted that the defendant refused to
submit to a test of blood. The law does not require any
presumption from the refusal to submit to the test. Every
person arrested for the offense of driving while under the
influence is entitled to refuse to submit to a test of bodily
substances.
6. Criminal pattern jury instruction 3-10-7 provides:
Evidence has been submitted that the defendant refused to
submit to a test of his blood to determine the amount of alcohol
by weight in the defendant’s blood. The refusal to submit is not
sufficient, by itself, to establish guilt of the defendant. It is a
fact which if proved, may be considered by you in light of all
other proved facts in deciding whether the defendant is guilty or
not guilty of the crime of driving while under the influence of an
alcoholic beverage and drugs. The weight, if any, to which the
refusal is entitled and whether the conduct shows a
consciousness of guilt are matters for your determination.
7. The court also read a preliminary jury instruction, stating: “Certain things
are not evidence. Statements, arguments, questions and comments made by
the attorneys during the trial are not evidence . . . . Testimony I strike from
the record, or tell you to disregard, is not evidence and must not be
considered.”
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estimated Nelson’s BAC was .132 percent while driving but did not reference
Nelson allegedly drinking at 7 p.m. While discussing Nelson driving under the
influence, the State noted that Nelson’s refusal was not the “end-all and be-all of
the case, but it is something” the jury could consider and noted it was within
Nelson’s right to refuse to consent to the blood draw. During Nelson’s closing
argument, he pointed to Geffre’s assumptions used to conclude that Nelson’s BAC
was over .08 percent while driving. He also commented:
[T]he [State] made a statement that we knew when [Nelson] had
been drinking, and then [the State] proceeded to question [its]
chemist and use a hypothetical time to try to extrapolate what
[Nelson’s] alcohol content would have been in his system. But
remember, please, the State’s statements are not evidence . . . .
There was no evidence presented about when [Nelson] drank or
what he drank because the State didn’t call the witness that
could have given you that information.
[¶19.] After deliberations, the jury returned guilty verdicts on all counts.
Nelson admitted to the part II information allegations, which enhanced the
maximum penalty for the abuse of or cruelty to a minor conviction (class 3 felony) to
that imposed for a class 1 felony. At sentencing, the circuit court stated it was
sentencing Nelson for count 2, DUI with a BAC over .08 percent. The court
sentenced Nelson to the following: fifteen years in the penitentiary with nine years
suspended for abuse of or cruelty to a minor; a suspended sentence of thirty days in
jail for DUI (counts 2 and 3); a suspended sentence of thirty days in jail for
possession of a revoked, altered or fictitious license; a suspended sentence of thirty
days in jail for possession of marijuana; a suspended sentence of thirty days in jail
for reckless driving; a suspended sentence of thirty days in jail for driving while
license is revoked; and a suspended sentence of ten days in jail for possession or use
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of drug paraphernalia. The sentences were to run concurrent to each other and to
another case for which Nelson was already serving time.
[¶20.] Nelson appeals, raising three issues which we restate as follows:
1. Whether the circuit court erred by denying Nelson’s
motions for judgment of acquittal.
2. Whether the circuit court abused its discretion by denying
Nelson’s motion for mistrial.
3. Whether the circuit court erroneously instructed the jury
regarding the blood test refusal evidence.
Analysis and Decision
1. Whether the circuit court erred by denying Nelson’s
motions for judgment of acquittal.
[¶21.] “Denial of a motion for judgment of acquittal is reviewed de novo.”
State v. Ware, 2020 S.D. 20, ¶ 12,
942 N.W.2d 269, 272 (citations omitted). We
consider “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” State v. Snodgrass,
2020 S.D. 66, ¶ 51,
951
N.W.2d 792, 808 (citation omitted). “[W]e accept the evidence and the most
favorable inferences that can be fairly drawn from it that support the verdict.”
Id.
(citation omitted). “We do not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence on appeal.” State v. Carter,
2009
S.D. 65, ¶ 44,
771 N.W.2d 329, 342 (citation omitted).
[¶22.] Nelson does not dispute the guilty verdicts for possession of a revoked
license (count 4), possession of marijuana (count 5), driving with a revoked license
(count 7), or possession of drug paraphernalia (count 8). However, he claims the
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court erred in denying his motion for judgment of acquittal on his DUI (counts 2
and 3), reckless driving (count 6), and abuse of or cruelty to a minor (count 1)
convictions because he claims that insufficient evidence supported those verdicts.
a. Driving Under the Influence (Counts 2 and 3)
[¶23.] Nelson argues the State failed to present sufficient evidence to permit
the jury to extrapolate Nelson’s BAC at the point he was driving. He claims
Geffre’s testimony only provided an exact BAC for when the medical professional
took the test, opposed to when he was driving. He also argues that Geffre conceded
that he used assumptions, rather than known facts, to estimate Nelson’s BAC while
driving. Specifically, he claims Geffre did not know whether Nelson was in a social-
drinking setting, how quickly Nelson’s body absorbed alcohol, what Nelson drank,
when he drank, and how much he drank. He also notes that Geffre testified that
applying assumptions differently could probably result in a BAC below .08 percent.
As a result, he argues Geffre’s expert testimony was insufficient because it was
based on conjecture and possibilities.
[¶24.] Nelson was found guilty of violating SDCL 32-23-1(1) and (2), which
provide:
No person may drive or be in actual physical control of any
vehicle while:
(1) There is 0.08 percent or more by weight of alcohol in that
person’s blood as shown by chemical analysis of that
person’s breath, blood, or other bodily substance;
(2) Under the influence of an alcoholic beverage, marijuana, or
any controlled drug or substance not obtained pursuant to a
valid prescription, or any combination of an alcoholic
beverage, marijuana, or such controlled drug or substance[.]
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Nelson disputes whether sufficient evidence established that, while he was driving,
his BAC was .08 percent or more. To do this, Nelson attacks Geffre’s testimony
regarding extrapolation.
[¶25.] In State v. Fode, under the prior version of our state’s DUI statute, we
addressed a similar issue regarding whether the admissibility of expert
extrapolation testimony offered by the State. 452 N.W.2d 779, 781 (S.D. 1990). In
Fode, the defendant argued the expert’s opinion regarding extrapolation lacked
foundation because the expert did not know the type of alcohol the defendant
consumed, when the defendant consumed his last beverage, and when the
defendant had last eaten.
Id. The expert had based his opinion regarding the
defendant’s BAC while driving on the defendant’s body weight, the time between
the blood withdrawal and the arrest, and the assumption that the defendant’s body
had yet to absorb one or two drinks.
Id. We determined that “for the purpose of an
expert opinion on extrapolation certain facts can be assumed, even though there is
no specific evidence” and held the circuit court properly admitted the expert’s
testimony.
Id. at 781–82. We concluded that the State presented sufficient
evidence to support extrapolation.
Id. at 782.
[¶26.] Here, the State submitted into evidence the blood test results
indicating that Nelson’s BAC at the time of the withdrawal was .114 percent.
Geffre then described the body’s process for absorbing alcohol and the rate at which
the body eliminates alcohol. He then applied these processes to Nelson’s height,
weight, the time between when Nelson was last seen driving and the withdrawal,
and the assumption that Nelson was in the post-absorptive phase, and concluded
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that Nelson’s BAC was approximately .132 percent while driving. Under the
holding in Fode, to reach his extrapolation opinions, Geffre was permitted to
assume certain facts about when and how much alcohol Nelson consumed. See, e.g.,
State v. Yuel, 2013 S.D. 84, ¶¶ 19–22,
840 N.W.2d 680, 687–88.
[¶27.] Nelson contends Geffre’s opinion was mere conjecture due to Geffre
testifying that assumptions could probably be made to result in a BAC below .08
percent. “[A]ll that must be shown is that [an] expert’s testimony rests upon ‘good
grounds, based on what is known.’ Any other deficiencies in an expert’s opinion or
qualifications can be tested through the adversary process at trial.” State v. Lemler,
2009 S.D. 86, ¶ 34,
774 N.W.2d 272, 285 (citations omitted); see generally State v.
McDonald,
421 N.W.2d 492, 493–94 (S.D. 1988). Geffre based his testimony on the
available evidence and provided a reasoned explanation for how he arrived at his
opinion. Because the testimony had sufficient foundation, the question of
intoxication then became an issue for the jury to weigh.
[¶28.] In viewing the evidence in a light most favorable to the verdict, the
circuit court did not err in determining that a rational trier of fact could have found
beyond a reasonable doubt that Nelson had a BAC of .08 percent or higher. Beyond
Geffre’s testimony, the State presented evidence of the 911 call reporting Nelson
was drinking earlier and swerving while driving, testimony that Nelson admitted
that he drank earlier that evening, the officers’ testimony that Nelson smelled of
alcohol, one officer’s testimony that Nelson had bloodshot eyes, and multiple videos
of Nelson’s arrest.
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b. Reckless Driving (Count 6)
[¶29.] Nelson argues that the State failed to establish that he was driving
recklessly because no testimony showed that he committed a traffic offense. He
claims that Officer Meyer’s speeding allegation was speculative because it was
unsupported by a video or a radar gun. He also contends that he did not endanger
any vehicles or pedestrians with his driving.
[¶30.] SDCL 32-24-1 provides:
Any person who drives any vehicle upon a highway . . .
carelessly and heedlessly in disregard of the rights or safety of
others, or without due caution and circumspection and at a
speed or in a manner so as to endanger or be likely to endanger
any person or property, is guilty of reckless driving.
Nelson did not raise foundation or speculation objections at trial during Officer
Meyer’s testimony regarding speeding. However, he now argues that Officer
Meyer’s estimation was baseless. We view the issue as one implicating only the
sufficiency of the evidence and not the admissibility of Officer Meyer’s testimony.
[¶31.] Officer Meyer testified that he learned to estimate the speed of vehicles
as part of his radar-lidar training and explained that before an officer deploys the
radar or lidar equipment, they must first estimate the vehicle’s speed. See, e.g.,
City of Vermillion v. Williams, 84 S.D. 589, 593,
174 N.W.2d 331, 333 (1970)
(stating, “people who have had experience in driving cars and observing the speed
thereof are competent to testify in regard to the speed of motor vehicles”). We do
not “pass on the credibility of witnesses[ ] or weigh the evidence.” State v. Mulligan,
2007 S.D. 67, ¶ 7,
736 N.W.2d 808, 813 (citations omitted). The jury could properly
consider Officer Meyer’s speed estimation.
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[¶32.] “[R]eckless driving only involves a more culpable degree of negligence
than the negligence involved in careless driving.” State v. Tammi, 520 N.W.2d 619,
623 (S.D. 1994). The State had to establish that Nelson drove his vehicle (1)
“carelessly and heedlessly in disregard of the rights or safety of others” or (2)
“without due caution and circumspection and at a speed or in a manner so as to
endanger or be likely to endanger any person or property[.]” SDCL 32-24-1. Based
on the evidence presented at trial, a rational trier of fact could have found that:
Nelson was traveling twice the legal speed limit, Officer Meyer was unable to catch
up to Nelson’s vehicle, Nelson traveled roughly ten blocks within a short time, and
Nelson was driving while intoxicated. This evidence was sufficient to support a
finding that Nelson was driving “carelessly and heedlessly in disregard of the rights
or safety of others[.]”
Id. Nelson also endangered the life of his infant child by
driving intoxicated, at twice the legal limit, with the infant improperly secured in
the back seat. This was sufficient evidence to justify a rational trier of fact to have
found that he was driving “without due caution and circumspection and at a speed
or in a manner so as to endanger or be likely to endanger any person[.]”
Id.
(emphasis added). The court did not err in denying Nelson’s motion for judgment of
acquittal on reckless driving.
c. Abuse of or Cruelty to a Minor (Count 1)
[¶33.] Based on his belief that the State had failed to establish reckless
driving or driving under the influence, Nelson contends there was no evidence to
establish abuse of or cruelty to a minor. He argues that the infant’s exposure to the
cold was insufficient evidence because the officers left the infant in the vehicle while
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they arrested Nelson. He also argues that Officer Meyer’s testimony regarding the
infant being improperly secured in the car seat was based on information—the car
seat manufacturer’s instructions—unknown to Officer Meyer.
[¶34.] “Any person who abuses, exposes, tortures, torments, or cruelly
punishes a minor in a manner which does not constitute aggravated assault”
violates SDCL 26-10-1. The State presented evidence that Nelson was driving
while intoxicated, was traveling 70-miles-per-hour in a 35-mile-per-hour zone, and
had an infant improperly secured in a car seat in the vehicle. We have previously
explained that the term “exposes” in SDCL 26-10-1 “includes those things or
scenarios . . . that ‘subject [a child] to needless risk.’” State v. Myers, 2014 S.D. 88, ¶
8,
857 N.W.2d 597, 600 (citation omitted). The State presented sufficient evidence
so that a rational trier of fact could have found that Nelson violated SDCL 26-10-1
by exposing his child to needless risk. Any issue with the weight of this testimony
was for the jury to decide. See Mulligan,
2007 S.D. 67, ¶ 7,
736 N.W.2d at 813. The
court did not err in denying the motion for judgment of acquittal regarding abuse of
or cruelty to a minor.
2. Whether the circuit court erred by denying Nelson’s
motion for mistrial.
[¶35.] “We review the denial of a motion for mistrial for an abuse of
discretion[.]” State v. Taylor, 2020 S.D. 48, ¶ 41,
948 N.W.2d 342, 355 (citation
omitted). An abuse of discretion is “a fundamental error of judgment, a choice
outside the range of permissible choices, a decision, which, on full consideration, is
arbitrary or unreasonable.” State v. Kvasnicka,
2013 S.D. 25, ¶ 17,
829 N.W.2d 123,
127–28 (citations omitted). “For purposes of determining whether there are
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grounds for a mistrial there must be error ‘which, in all probability, produced some
effect upon the jury’s verdict and is harmful to the substantial rights of the party
assigning it.’” State v. Stone, 2019 S.D. 18, ¶ 34,
925 N.W.2d 488, 500 (citations
omitted).
[¶36.] Nelson argues the circuit court erred by denying his motion for
mistrial because the State’s questioning of Geffre involved facts not in evidence and
constituted prosecutorial vouching. He claims the alleged vouching violated his due
process, fair trial, and confrontation clause rights. Nelson contends that the circuit
court’s curative instruction was insufficient because Geffre’s testimony provided the
footing for the jury to determine that Nelson’s BAC was .08 percent or higher while
driving, making the prejudice incurable.
[¶37.] The State’s at-issue comment provided:
[Geffre], we don’t have to make assumptions about when
[Nelson] had been drinking. Evidence was presented earlier
that he was observed drinking about an hour before the 911 call
had come in, and that call came in at 8:05, and so around seven
p.m.?
a. Vouching
[¶38.] “[P]rejudice can result from the prosecution placing the prestige of the
government behind the witness and implying that the prosecutor knows what the
truth is and thereby assures its revelation.” State v. Westerfield, 1997 S.D. 100, ¶
12,
567 N.W.2d 863, 867 (citation omitted). If a prosecutor conveys this message
explicitly or implicitly, they are improperly vouching. See Jenner v. Leapley,
521
N.W.2d 422, 427 (S.D. 1994). Here, the State was not suggesting that it “had some
superior knowledge or criterion, not available to the jury, to establish the witness
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was testifying truthfully.” Lodermeier v. Class, 1996 S.D. 134, ¶ 17,
555 N.W.2d
618, 624. Instead, the State was attempting to draw the jury’s attention to a fact—
Nelson was drinking at 7 p.m.—that it incorrectly believed was in evidence. This
was not a case of vouching.
b. Facts not in evidence and hypotheticals involving
those facts
[¶39.] The relevant objection, which Nelson raised, was that the State’s
question presented facts not admitted in evidence. The State conceded that
“offering the timeline was [ ] done out of mistake” based on an erroneous belief that
the evidence had been received. Therefore, the State erred by saying definitively
that the jury had heard evidence that Nelson was drinking an hour before the 911
call, around 7 p.m.
[¶40.] Nevertheless, the posed hypotheticals, presented without objection,
have an evidentiary basis and are not a statement of fact like the State’s original
question. 8 Nelson is correct that “[a] hypothetical question should be framed in
8. The State posed the following hypotheticals:
State: Now, and so theoretically, if there were information that the
Defendant had been seen drinking at approximately seven p.m.,
um, how does that change your opinion, if at all, about the BAC
being around—we’ll say a [.]13; is that fair, at the time of
driving?
Geffre: Um, the alcohol that had been drank—that had been consumed
in that time, would have been absorbed, and so, yes, it would be
consistent with the .13.
State: Okay. And what about that if we’re going on the assumption
that he is below a .08 at the time of driving, theoretically him
(continued . . .)
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accordance with some theory which the evidence reasonably lends support.”
Kramer v. Sioux Transit, Inc., 85 S.D. 232, 237,
180 N.W.2d 468, 471 (1970). The
State presented sufficient evidence permitting hypothetical questions based on the
premise that Nelson was drinking before 8 p.m. The jury heard the redacted 911
call, which the caller placed around 8:05 p.m. In the call, dispatch asked how the
caller knew Nelson was intoxicated, and the caller responded that she saw him
drinking earlier and swerving while driving. Then when the officers arrested
Nelson around 8:30 p.m., Nelson confirmed that he had been drinking a bit earlier.
Based on this evidence, it was not illogical for the State to pose a hypothetical
involving Nelson drinking at 7 p.m. The State was careful to theoretically pose the
7 p.m. time and kept the hypotheticals within Geffre’s area of expertise—the body’s
rate of absorbing alcohol. “Much must be left to the sound judicial discretion of the
trial court in determining how far counsel must limit his [or her] questions so the
________________________
(. . . continued)
having been seen drinking around seven p.m., would that be
consistent then with a .114 blood test?
Geffre: It [sic] could be, yes.
State: How so?
Geffre: Um, depending on how high the level was at the peak, it will
take time to eliminate at that constant rate. And so whatever
was drank in that hour-time period before would have been
absorbed into the blood, and the body would be eliminating in
that post-absorptive phase.
State: And so it would have been possible that if he were drinking at
around seven p.m., he would have been below a .08 at the time
of the draw and then back up to a .114 at the time of testing?
Geffre: Not without additional alcohol being consumed.
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opinion will be of assistance to the jury.” Id. at 239,
180 N.W.2d at 472 (citation
omitted). The circuit court acted within its discretion by permitting the
hypotheticals.
c. Prejudice
[¶41.] A motion for mistrial “will not be granted unless there is a showing of
actual prejudice to the defendant.” State v. Johnson, 2001 S.D. 80, ¶ 9,
630 N.W.2d
79, 82 (citation omitted). Even though the State erred by offering facts not in
evidence, the circuit court corrected the error by providing the jury a curative
instruction that Nelson’s counsel drafted. We “presume that juries understand and
abide by curative instructions.” State v. Dillon,
2010 S.D. 72, ¶ 28,
788 N.W.2d 360,
369 (citations omitted) (holding that a court’s curative instruction remedied an
expert’s improper vouching, and the court did not err by denying motion for
mistrial). Further, during the bench conference, the court asked if Nelson’s counsel
agreed to the State offering the hypotheticals, and Nelson’s counsel shrugged in
response. Nelson’s counsel then did not object to the hypotheticals. Following the
hypotheticals, Nelson cross-examined Geffre and drew to the jury’s attention that
Geffre’s opinion testimony was based on assumptions. The curative instruction and
Nelson’s cross-examination cured any prejudice. The State also presented other
evidence establishing that Nelson was drinking earlier that evening—the 911 call
and the video showing Nelson’s admission that he drank earlier. Based upon these
facts, the circuit court did not err in concluding that Nelson failed to establish
prejudice warranting a mistrial. The circuit court did not abuse its discretion by
denying the motion for mistrial.
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3. Whether the circuit court erroneously instructed the
jury regarding the blood test refusal evidence.
[¶42.] “We review a trial court’s denial of a jury instruction for an abuse of
discretion.” State v. Liaw, 2016 S.D. 31, ¶ 18,
878 N.W.2d 97, 102 (citation
omitted). However, “a court has no discretion to give incorrect or misleading
instructions, and to do so prejudicially constitutes reversible error.”
Id. (citation
omitted). We consider jury instructions as a whole, and “[i]f they ‘correctly state the
law and inform the jury, they are sufficient.’” State v. Kryger,
2018 S.D. 13, ¶ 41,
907 N.W.2d 800, 814 (citations omitted). We review whether the jury instruction
correctly states the law de novo. State v. Waloke,
2013 S.D. 55, ¶ 28,
835 N.W.2d
105, 113.
[¶43.] Nelson claims the circuit court misapplied the law by providing the
State’s requested jury instruction instead of his proposed instruction, and in doing
so, the court misapplied State v. Stanley,
2017 S.D. 32,
896 N.W.2d 669. He also
contends that the presented instruction permitted the jury to consider the exercise
of his constitutional right to withhold consent as proof of his guilt. He claims a
combined Fourth and Fifth Amendment protection prohibits the jury from
considering this evidence. Nelson finally contends that the court’s selected
instruction failed to include language stating that Nelson held the right to refuse
consent, and it unnecessarily emphasized Nelson’s withholding of consent over
other pieces of evidence.
[¶44.] The disputed instruction provided:
Evidence has been submitted that the defendant refused to
submit to a test of his blood to determine the amount of alcohol
by weight in the defendant’s blood. The refusal to submit is not
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sufficient, by itself, to establish guilt of the defendant. It is a
fact which if proved, may be considered by you in light of all
other proved facts in deciding whether the defendant is guilty or
not guilty of the crime of driving while under the influence of an
alcoholic beverage and drugs. The weight, if any, to which the
refusal is entitled and whether the conduct shows a
consciousness of guilt are matters for your determination.
South Dakota Pattern Jury Instructions (Criminal) 3-10-7.
[¶45.] The withdrawal of an individual’s blood implicates the Fourth
Amendment protection against unreasonable searches and seizures. See Missouri v.
McNeely, 569 U.S. 141, 148,
133 S. Ct. 1552, 1558,
185 L. Ed. 2d 696 (2013). For an
officer to obtain permission for withdrawal of an individual’s blood, they must
obtain a warrant from a neutral and detached magistrate, or an exception to the
warrant requirement must apply.
Id. This court has previously rejected the
contention that asking an arrestee to provide a urine sample is either a search or
seizure. Stanley,
2017 S.D. 32, ¶ 17, 896 N.W.2d at 676–77. Thus, any claim that
the admission of a refusal to provide consent implicates a Fourth Amendment
violation is misplaced.
[¶46.] The United States Supreme Court has rejected the notion that the use
of a refusal as evidence against the individual refusing to consent violates the Fifth
Amendment. South Dakota v. Neville,
459 U.S. 553, 564,
103 S. Ct. 916, 923,
74 L.
Ed. 2d 748 (1983). An individual’s refusal to provide consent to a blood draw, “after
a police officer has lawfully requested it, is not an act coerced by the officer, and
thus is not protected by the privilege against self-incrimination[,]” and the State
may use the refusal to take the test as evidence of guilt.
Id. The Supreme Court
has repeatedly referenced with approval state statutes that place evidentiary
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consequences on individuals who refuse to consent to a blood withdrawal in a DUI
prosecution. See Birchfield v. North Dakota, 579 U.S. 438,
136 S. Ct. 2160, 2185,
195 L. Ed. 2d 560 (2016) (stating prior decisions have “referred approvingly” to laws
imposing “evidentiary consequences on motorists who refuse to comply”); Mitchell v.
Wisconsin,
139 S. Ct. 2525, 2533,
204 L. Ed. 2d 1040 (2019); McNeely,
569 U.S. at
161,
133 S. Ct. at 1566.
[¶47.] SDCL 32-23-10.1 provides: “If a person refuses to . . . allow the
withdrawal of blood or other bodily substance for chemical analysis as provided in
§ 32-23-10, and that person subsequently stands trial for violation of § 32-23-1 or
§ 32-23-21, such refusal may be admissible into evidence at the trial.” Because the
statute permits a court to admit the refusal into evidence, and neither this Court
nor the United States Supreme Court has interpreted this to be a violation of a
defendant’s Fourth Amendment Rights, Fifth Amendment Rights, or a combination
of those rights, the circuit court correctly instructed the jury on the current state of
our law.
[¶48.] Nelson also claims the instruction improperly emphasized one piece of
evidence—Nelson’s refusal—over other evidence. Notably, while the State offered
Nelson’s refusal of the blood-alcohol test as evidence supporting that Nelson was
under the influence of alcohol, the court also provided jury instruction 23, which
referred to many other facts the jury could consider in making this determination.
It provided:
In determining whether or not the defendant was under the
influence of an alcoholic beverage at the time of the alleged
offense, you may take into consideration the appearance, acts
and conduct of the defendant insofar as shown, whether or not
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the defendant had been drinking an alcoholic beverage and, if
so, the kind and amount thereof and the time of drinking with
reference to the time of the alleged offense; the odor, if any, of an
alcoholic beverage on the defendant’s breath, the manner of
driving and all the evidence, facts and circumstances in the case
and, applying your judgment, you may determine whether the
defendant drove a vehicle while under the influence of an
alcoholic beverage.
[¶49.] “We consider jury instructions as a whole[.]” State v. Birdshead, 2015
S.D. 77, ¶ 14,
871 N.W.2d 62, 70 (citation omitted) (quotation mark omitted). The
court instructed the jury on multiple factors to consider when determining if Nelson
was under the influence. And the at-issue jury instruction 25 provided the same,
stating, “The refusal to submit is not sufficient, by itself, to establish guilt of the
defendant. It is a fact which if proved, may be considered by you in light of all other
proved facts[.]” (Emphasis added.) Contrary to Nelson’s contention, the court did
not emphasize the State’s position over his own; but rather, it provided that the jury
was to determine “[t]he weight, if any, to which the refusal [wa]s entitled and
whether the conduct show[ed] a consciousness of guilt[.]” The circuit court properly
instructed the jury on the factors it could weigh and instructed the jury to distribute
weight amongst those factors.
[¶50.] Next, Nelson contends the court’s instruction should have included the
language from his proposed instruction, stating that he had the right to refuse
consent. A defendant can withhold consent to a warrantless blood draw. See State
v. Fierro,
2014 S.D. 62, ¶¶ 23–24,
853 N.W.2d 235, 243; Birchfield,
136 S. Ct. at
2173. However, SDCL 32-23-10.1 establishes evidentiary consequences that result
from that decision. Nelson argues that criminal pattern jury instruction 3-10-7 is
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insufficient because it does not explicitly advise the jury that he has a right to
refuse the requested blood draw. We disagree.
[¶51.] It is true, of course, a defendant is not obligated to consent to a seizure
of bodily substances. See McNeely, 569 U.S. at 159,
133 S. Ct. at 1565 (“We have
never retreated . . . from our recognition that any compelled intrusion into the
human body implicates significant, constitutionally protected privacy interests.”).
But where such a seizure is conducted pursuant to a search warrant or under
circumstances constituting a recognized exception to the Fourth Amendment’s
warrant requirement, the defendant may not refuse to submit a sample. To suggest
otherwise, as criminal pattern instruction 3-10-6 does, states the rule too broadly
and does not accurately reflect the law. We concluded as much in State v.
Herrmann, when we held that “within constitutional limits, a person can be forced
to submit to a test of bodily fluids[.]”
2002 S.D. 119, ¶ 17,
652 N.W.2d 725, 730.
[¶52.] Nothing in the instruction given suggests that an individual must
consent to a blood draw, nor does its language preclude an argument by a defendant
that he was operating within his right to refuse consent. Here, the State noted the
same when it advised the jury during its closing argument that Nelson had the
right to withhold his consent. The instructions, as a whole, adequately informed
the jury as to how they could, or could not, consider the evidence of the refusal to
consent to the blood draw, the possible inference that could be drawn, and the jury’s
role in assessing what weight, if any, to afford this evidence.
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Conclusion
[¶53.] The circuit court did not err in denying Nelson’s motions for judgment
of acquittal. Although the prosecutor’s comment stated facts not in evidence, the
court provided a curative jury instruction and did not abuse its discretion by
denying Nelson’s motion for mistrial. Finally, the circuit court did not abuse its
discretion in the manner in which it instructed the jury. We affirm.
[¶54.] JENSEN, Chief Justice, and KERN, SALTER, and DEVANEY,
Justices, concur.
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